Denise I. Murphy

Denise Murphy is an experienced employment defense lawyer licensed in Massachusetts with an active practice throughout the United States. Her practice areas include sexual harassment claims, discrimination claims, adverse workplace actions, counseling of employers and their employeees, employee handbooks, and training. Ms. Murphy also represents companies and individuals in excecutive compensation negotiations and disputes over covenants not to compete.

Denise Murphy was named to the Top 50 Massachusetts Women Lawyers in 2008, and was named a Super Lawyer in the field of Employment Law in 2007.

Massachusetts has enacted new anti-harassment and anti-abuse laws which will affect on the workplace. The law, which becomes effective on May 10, 2010, creates a procedure for anyone to obtain a protective order for harassment if they are the victims of three acts of intimidation, abuse, or property damage, or are they are the victims of a forceful or threatening act which causes another to involuntarily engage in sexual relations or other related crimes. The law uses definitions of “abuse” and “harassment” which are so broad that there will be significant workplace implications.

These procedures allow courts to issue Harassment Prevention Orders (“HPO’s”) against anyone who engages in these types of behaviors. Unlike the more restrictive state and federal anti-harassment laws which prohibit harassment based upon protected class status, HPO’s are not subject to administrative filing prerequisites, nor are they limited to claims based upon protected class status. HPO’s can be filed in superior court, the Boston Municipal court, or the respective divisions of any juvenile or district court in which the plaintiff resides. And, they may be filed on an emergency basis without any notice to the defendant (ex parte).

The statute defines “abuse” as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” Under the HPO, if a person engages in “3 or more acts of willful and malicious conduct with the intent to cause fear, intimidation, abuse or property damage toward a specific person, and does, in fact, cause fear, intimidation, abuse or property damage to that person, the victim may obtain injunctive relief from the court, prohibiting the harasser from any contact with the victim. As a practical matter, this means that an employee who engages in this type of behavior at work can be prevented from returning to work until and unless the issue is resolved to a court’s satisfaction.

We are all aware of workplace situations in which co-workers, bosses, and even clients and customers, engage in inappropriate and unprofessional conduct at work. They yell, they scream, and they throw things around when things don’t go their way. So called “workplace bullies” are not the norm, but they do exist and create significant morale and productivity issues at work. Now, with the implementation of this new law, the possibility exists that these unrestrained individuals face far more significant consequences than disciplinary actions from their employer. While HPO’s are civil in nature, they are enforced criminally if violated.

What Should a Massachusetts Employer Do?

As a result of the new Massachusetts law, employers should undertake measures to reduce the likelihood of abuse or harassment within the workplace. Prevention of abusive behaviors and harassment should be the first goal. If reported, an immediate and appropriate response is critical. I suggest that every employer provide training, guidelines, and effective reporting procedures.

For further information regarding the implications of this new law in the workplace, please contact me directly at dmurphy@rubinrudman.com or at (617) 330-7123.

The Massachusetts Appeals Court has affirmed the principle of absolute privilege in connection with complaints of discrimination claims made to the human resources department and to the administrative agencies. Accordingly, the manager against whom the complaints were made could not countersue for libel, slander, malicious interference with advantagous business relations, or wrongful procurement of breach of employment agreement.

The underlying case was brought by a bartender, who had worked in a Marriott hotel in Cambridge, Massachusetts. After several months of working under a particular supervisor, she resigned. At the urging of a new manager at the hotel, she reapplied for the position. At her second interview for the position, she was interviewed only by her earlier supervisor, not, as she expected, by the supervisor and the manager. After the interview, she withdrew her application, and immediately complained that she had been harassed by the supervisor, and that he had behaved inappropriately.

The bartender followed up the verbal complaint with a written complaint to the general manager, to human resources, and to the legal department. She detailed her complaints against the supervisor for his harassment, and other complaints, and stated she would bring claims at the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination if her harassment claims were not promptly settled.

No settlement offer was forthcoming, so the bartender filed with the EEOC. The case was promptly settled with Marriott.

Almost a year later, the supervisor brought suit against the bartender and Marriott, claiming wrongful termination against Marriott as well as the defamation and tort claims against the bartender. The bartender’s summary judgment motion was denied, and the supervisor’s was allowed. The bartender appealed and the trial court was reversed.

The Massachusetts Appeals Court held that the letter to Marriott, in which the bartender threatened suit but offered settlement, was absolutely privileged since they related to the institution of a good faith judicial proceeding. The letter was, in fact, followed by the claim at the EEOC, based upon the same allegations. The court wrote, “Because her statements were made entirely in the confines of a protected forum, she is entitled to the defense of absolute privilege on [the defamation claims].” The exact same analysis applied to the claims of interference with employment relations.

The Lessons of This Case

Employers must understand that workers have the right to make good faith complaints. The duty on the employer is to undertake appropriate investigation and, where appropriate, corrective action.